CYIL vol. 11 (2020)

HARALD CHRISTIAN SCHEU CYIL 11 (2020) and Fundamental Freedoms is not alone in playing an important role in EU migration and asylum law, the Charter of Fundamental Rights does as well. Not too long ago, the CJEU was given the opportunity to clarify the scope of the non- refoulement principle within EU law. With a view to some rather unclear and ambiguous formulations in the Qualification Directive, the CJEU had to deal with the issue of the absoluteness of the prohibition of refoulement. In this paper, we will present the Court’s major arguments and place them in the broader context of international law. 2. The legal basis of the principle of non-refoulement in international law According to the principle of non-refoulement, no one should be returned to a state where he would face the risk of serious human rights violations. The protection of vulnerable persons against refoulement is based on the ideas of humanity and human dignity and includes, inter alia, protection against torture and inhuman treatment, arbitrary deprivation of life and persecution on the grounds of race, religion, nationality, or belonging to a certain social group. 1 The principle of non-refoulement is a cornerstone of both international refugee law 2 and the international protection of human rights. During the interwar period, this principle was codified in legally binding conventions governing the status of refugees from Russia and Turkey (1933) and from Nazi Germany (1938). The 1951 Geneva Convention Relating to the Status of Refugees (as amended by the 1967 New York Protocol) approached the problem of non-refoulement with a universal ambition. Its Article 33(1) provides that no Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. With regard to the gradual incorporation of the principle of non-refoulement into the body of international human rights law, we may briefly point to the judgment of the European Court of Human Rights in the famous case of Soering v. the United Kingdom . 3 In the light of Article 3 of the ECHR, the Court in 1989 concluded for the first time that Contracting States may not expel a person to a third State where he could become a victim of torture or inhuman treatment. Three years later, this interpretation was confirmed by the UN Human Rights Committee in relation to the corresponding Article 7 of the International Covenant on Civil and Political Rights (ICCPR), according to which no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 4 While, in the context of the ECHR and the ICCPR, the principle of non-refoulement has been deduced by the interpretation of conventional bodies, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment contains an explicit prohibition in its Article 3(1), which stipulates that no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be 1 International Committee of the Red Cross. Note on Migration and the Principle of Non-Refoulement. International Review of the Red Cross (2017), 99 (1), pp. 345-357. 2 European Union Agency for Fundamental Rights. Scope of the principle of non-refoulement in contemporary border management: evolving areas of law, Luxembourg, 2016, p. 12. 3 Application No. 14038/88. 4 UN Human Rights Committee. CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992.

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